State v. Hutchinson

• Decision Date: 21 October 1970
• Docket Number: No. 54562,54562
• Citation: 458 S.W.2d 553
• Parties: STATE of Missouri, Respondent, v. Ned Willie HUTCHINSON, alias Raymond Michaelson, alias Nicholas Swift, Appellant.
• Court: Missouri Supreme Court

Page 553

458 S.W.2d 553

STATE of Missouri, Respondent, v. Ned Willie HUTCHINSON, alias Raymond Michaelson, alias Nicholas Swift, Appellant.

No. 54562.

Supreme Court of Missouri, En Banc.

Oct. 21, 1970.

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.

Harry L. Bell, St. Louis, for defendant-appellant.

PER CURIAM.

Appellant, Ned Willie Hutchinson, was convicted in the Circuit Court of the City of St. Louis, of stealing an automobile, and his punishment, under the provisions of the Habitual Criminal Act, was assessed at imprisonment for a term of two years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence to sustain the conviction. The issues presented on this appeal result from the fact that he did not testify at the trial.

Appellant first asserts that he should be granted a new trial because the record does not affirmatively show that the trial court or his counsel advised him of his right to testify in his own behalf. He cites Poe v. United States, D.C., 233 F.Supp. 173, in which case the Court held that the right of an accused to testify in his own behalf is a constitutional right guaranteed by the Fifth and Sixth Amendments to the United States Constitution. Appellant then cites Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (which involved a plea of guilty), and Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (which involved waiver of right to counsel), assumes from Poe, supra, that the right to testify is a constitutional right, and reasons from the holdings in Boykin, supra, and Carnley, supra, that the record in a criminal case must affirmatively show that the trial court or counsel advised him of his right to testify in his own behalf.

We believe the assumption that the right to testify is a constitutional right is erroneous. The assumption ignores the history of the right. The common law rule, when our Nation was founded, was that an accused in a criminal trial could not testify in his own behalf. An accused was first given the right to testify in Missouri by statute in 1877 (V.A.M.S., § 546.260), and in the federal courts by statute in 1878 (18 U.S.C. § 3481). We need not relate the history of the right in this opinion. The extended discussions in Ferguson v. Georgia, 365 U.S. 570, 573--582, 81 S.Ct. 756, 5 L.Ed.2d 783, and Popper, History and Development of the Accused's Right to Testify, 1962 Washington University Law Quarterly, page 454, et seq., conclusively demonstrate that the right of a criminal defendant to testify in his own behalf is a statutory right and not a constitutional right. This view is supported in Sims v. Lane, 7 Cir., 411 F.2d 661, at 664, where the Court said:

'In the federal courts, the privilege of an accused to testify in his own defense is merely statutory, abrogating the common law rule of incompetence. 18 U.S.C. § 3481. No case has been brought to our attention to support petitioner's contention that the Fourteenth Amendment accords a defendant in a state court a federal constitutional right to testify. To the contrary, the federal rule seems to be that the exercise of this right is subject to the determination of competent trial counsel and varies with the facts of each case.'

We hold that the record in a criminal case need not affirmatively show that the trial court or counsel advised accused of his right to testify in his own behalf. The question whether appellant was given effective assistance of counsel in this respect cannot be decided on this record on this appeal. State v. Cluck, Mo.Sup., 451 S.W.2d 103(7--8).

Appellant next asserts that he is entitled to a new trial because '(t)he statements made by the prosecutor in his trial argument, called to the jury's attention defendant's failure to testify and thereby violated defendant's constitutional right against self-incrimination and violated defendant's statutory right not to have the State make reference thereto.' The argument complained of is as follows:

'Mr. Kitchin: What he is saying to you is about the only thing he can say because he has no evidence on his side * * *. He can call any witnesses he wants.

'Mr. Sigoloff: * * * I don't think that is proper argument.

'The Court: Objection Sustained.

'Mr. Kitchin: I closed the case just before lunch * * *. He was free to offer any evidence he had at that time and he offered nothing.'

'(Defendant's objection at this point was interrupted by a bench conference and was not ruled.)

'Mr. Kitchin: In other words, the only thing the defense brought you is a complete lack of evidence, nothing, nil. What he is trying to say is because there is no witness (who) actually saw the man remove (the car) that I haven't proved him guilty * * *. There's been no evidence at all to rebut any the State put on, no evidence at all. He had his chance.

'Mr. Sigoloff: * * * that is not proper argument.

'The Court: Overruled. * * *'

The first question for consideration is whether the above argument violated appellant's federally guaranteed rights under the Fifth Amendment to the Constitution of the United States, which provides that no person '* * * shall be compelled in any criminal case to be a witness against himself, * * *.' This determination is necessary because the Supreme Court of the United States in 1965 in the case of Griffin v. California, 380 U.S. 609, 611, 85 S.Ct. 1229, 1231, 14 L.Ed.2d 106, held that 'comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which * * * (was) made applicable to the States by the Fourteenth in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 * * *.' Subsequently, in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the Supreme Court expanded on that subject by holding that the federal right of an accused not to be penalized by the States for exercising his Fifth and Fourteenth Amendment rights to be silent shall be protected by federal, not state, rules and standards. In so holding, the court said, 386 U.S. l.c. 21, 87 S.Ct. l.c. 826--827: 'With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights. We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment right to be silent--expressly created by the Federal Constitution itself--is a federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule.'

The question then, is whether the above quoted argument violated appellant's Fifth and Fourteenth Amendment rights as declared in Griffin and Chapman. We hold that it did not. Both Griffin and Chapman involve situations wherein there are direct and certain references to failure of the accused to testify. Even then, Chapman held that the direct reference might be declared harmless error if the State demonstrated beyond a reasonable doubt that the prosecutor's comments did not contribute to the conviction. 386 U.S. l.c. 26, 87 S.Ct. 824. In our judgment, Griffin and Chapman did not purport to apply in a factual situation such as here presented wherein there was no direct reference to failure of the appellant to testify. Counsel in his argument commented on the fact that appellant could have called 'any witnesses he wanted to,' that he was 'free to offer any evidence he had,' and that defendant had offered no evidence. Counsel then indicated that what was said was in response to argument advanced by counsel for appellant. At the very most, it is arguable that the jury may have inferred that this argument related to failure of appellant to testify. It clearly was not a direct and certain reference to failure of the accused to testify. We have found no case wherein the Supreme Court of the United States has articulated a federal standard applicable to the States which would require in a fact situation such as that which confronts us that we hold that the argument violated defendant's Fifth and Fourteenth Amendment rights.

What we have said about the argument not violating appellant's federally guaranteed constitutional rights is applicable also to appellant's rights under Art. I, § 19 of the Constitution of Missouri, V.A.M.S. Its provisions are practically identical with those of the Fifth Amendment to the Constitution of the United States, and the argument would not amount to a violation of appellant's State constitutional rights.

The next question with reference to said argument is whether it was violative of § 546.270, V.A.M.S. (Supreme Court Rule 26.08, V.A.M.R.). That statute was adopted originally by the Missouri Legislature in 1877, when it adopted the statute authorizing defendants to testify in their own behalf (§ 546.260, supra). Section 546.270 provides as follows: 'If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.'

The argument in this case did not contain direct and certain reference to failure of appellant to testify. In a fact situation such as here presented, the scope of appellate review of the action of the trial court with reference to objections to the argument made is as stated in State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588: 'Whether or not a particular improper argument is so prejudicial under the facts in the particular case, as to necessitate a reprimand of counsel or a...